United States of America v. Levesque
Judge Indira Talwani: ORDER entered. MEMORANDUM AND ORDER ALLOWING 40 MOTION for Leave to File Additional Evidence. See Attached Order.(DaSilva, Carolina)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
UNITED STATES OF AMERICA,
Civil Action No. 16-cv-12055-IT
MEMORANDUM & ORDER
June 19, 2017
Petitioner, the United States of America, filed a Petition Pursuant to 18 U.S.C. § 4246 for
a Hearing to Determine Present Mental Condition of an Imprisoned Person Due for Release
(“Petition”) [#1] asserting that Respondent Andre Levesque is “presently suffering from a mental
disease or defect as a result of which his release would create a substantial risk of bodily injury
to another person or serious damage to property of another . . . .” 18 U.S.C. § 4246(a). Petitioner
now seeks leave to proffer for in camera review a letter that Petitioner received from Respondent
on May 25, 2017, so that this court can determine whether the letter should be submitted into
evidence with regard to the underlying Petition. Mot. of United States to Submit Additional
Evid. (“Mot. Submit Additional Evid.”) 1 [#40]. Respondent has opposed the motion. Resp’t’s
Opp’n Mot. United States Submit Additional Evid. (“Resp’t Opp’n”) [#48].
A court considering a petition for civil commitment under 18 U.S.C. § 4246 must “order
a hearing to determine whether [the respondent] is presently suffering from a mental disease or
defect as a result of which his release would create a substantial risk of bodily injury to another
person or serious damage to property of another . . . .” 18 U.S.C. § 4246(a). At such hearing, the
Respondent “shall be afforded an opportunity to testify, to present evidence, to subpoena
witnesses on his behalf, and to confront and cross-examine witnesses who appear at the hearing.”
18 U.S.C. § 4247(d). This court held such a hearing on May 4, 2017, and did not leave the
hearing open for further evidence. Accordingly, the threshold question before this court is
whether the court may reopen the evidentiary hearing.
Respondent first argues that where Congress intended to allow a court to reopen an
evidentiary hearing, Congress expressly provided a mechanism for doing so in the underlying
statutory scheme. According to Respondent, because Congress did not expressly allow a court to
reopen an evidentiary hearing in civil commitment proceedings under 18 U.S.C. §§ 4246 and
4247(d), this court may not do so. However, the cases Respondent cites to support its argument
are inapposite. In United States v. Dillon, the First Circuit considered the denial of defendant’s
motion, brought pursuant to 18 U.S.C. § 3142(f), to re-open a pre-trial detention hearing. 938
F.2d 1412, 1415 (1st Cir. 1991). Dillon thus addressed whether the defendant had met the
statutory requirements articulated in Section 3142(f). It did not opine on a court’s ability to reopen a hearing in other circumstances, such as a civil commitment proceeding under 18 U.S.C.
§ 4246. In United States v. Springer, the Fourth Circuit considered whether it had the authority to
remand a case back to the district court for the submission of additional evidence once the
district court denied the government’s sexual dangerousness petition under 18 U.S.C. § 4248 and
entered a final judgment. 715 F.3d 535, 544 (4th Cir. 2013). By contrast, this court has not yet
issued an order on the government’s petition.
Respondent also makes several policy arguments, all of which are unavailing.
Respondent argues that the evidence the government wishes to submit for in camera review is
cumulative, and review of that evidence would cause unnecessary delay. But the government is
not seeking a second bite at the apple. Rather, it seeks to have this court review new evidence not
available to it at the May 4, 2017, evidentiary hearing. Moreover, while proffering evidence posthearing necessarily creates delay, that new evidence purportedly stems from Respondent’s own
actions. Respondent asserts further that the potential for the submission of additional evidence
depends on the length of time a petition is under advisement, a variable untethered to the merits
of a petition. This argument has little resonance here, where the motion was filed just one week
after the post-hearing briefs. Finally, Respondent presses concerns regarding finality. But the
parties’ interest in finality, though significant, should not blind the court to new evidence
proffered while the matter was under advisement.
Accordingly, the government’s Motion to Submit Additional Evidence [#40] for in
camera review is GRANTED. If after such review, the court decides to allow submission of the
evidence, the court will then also determine the appropriate procedural safeguards for such
submission, including but not limited to re-opening the evidentiary hearing under 18 U.S.C.
For the foregoing reasons, the government’s Motion to Submit Additional Evidence [#40]
for in camera review is GRANTED. The government shall furnish to the court for in camera
review the proffered new evidence.
IT IS SO ORDERED.
Date: June 19, 2017
/s/ Indira Talwani
United States District Judge
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